David Jones v Woolworths Ltd T/A Woolworths Ltd
[2023] FWC 375
•15 FEBRUARY 2023
| [2023] FWC 375 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Jones
v
Woolworths Ltd T/A Woolworths Ltd
(U2022/11912)
| DEPUTY PRESIDENT LAKE | BRISBANE, 15 FEBRUARY 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.
Mr David Jones (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Woolworths Ltd (the Respondent).
The Applicant began his employment on 15 September 2007. It is uncontentious that the Respondent terminated the Applicant’s employment on 3 November 2022. The application was lodged with the Commission on 15 December 2022.
Directions were set for the filing and service of material. The Applicant filed and served their material at 3:14am on Wednesday, 1 February 2023. The Respondent filed and served their material at 1:18pm on Wednesday, 8 February 2023. The jurisdictional matter was heard at 10:00am on Monday, 13 February 2023.
Was the application lodged within time?
Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.
The Applicant lodged his application on 15 December 2022. He accepts that his application was made some 21 days outside of the 21 days required under s.394(2) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.
Consideration of whether a further period should be granted
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.394(3) of the Act.
Mrs Amanda Jones (the Applicant’s wife) provided oral evidence on the delay and exceptional circumstances during the hearing. Her evidence is summarised as follows:
(a)The Applicant failing to file an application within the 21-day timeframe was due to the Applicant’s significant decline in mental health. He provided a letter from his psychologist dated 30 January 2023. The letter states that the Applicant presented on 23 July 2022 and has attended 12 sessions at Magnus Health. Further, the letter provides that the Applicant has “reduced ability to cope with various life stressors has had a functional impact on his capacity to complete regular daily duties.”
(b)Mrs Jones was instructed by the Applicant a couple of days after he was dismissed to file an application for a remedy for unfair dismissal. She already had a lot of responsibility with having three children and attending to their sporting, schooling, and medical appointments. Further, she now had to attend to appointments for her husband – as he was placed on self-harm watch.
(c)Mrs Jones looked at the Commission’s website and was unable to submit the application online. She had to download the form, complete it by hand, then post the application through Australia Post.
(d)It was asserted the application was put in a post box four days prior to the 21-day deadline. Mrs Jones called Australia Post and asked if this was enough time, which Australia Post confirmed it was.
(e)The Applicant and Mrs Jones provided correspondence to the Respondent prior to the Applicant’s dismissal.
(f)Regarding the merits, the Respondent had the ability to provide an alternative role or provide a redundancy.
The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions were that:
(a)The Applicant did not provide any exceptional circumstances for the delay. It was admitted that he attended a meeting on 3 November 2022. Following this meeting, he advised Mrs Jones to file an application for unfair dismissal. Mrs Jones admits that she was asked to file an application as soon as the Applicant was provided with a letter of termination. She does not confirm what date the application was completed as the application was not dated. She does not provide evidence of when the application was posted, only that she called the post office four days prior to the 21-day deadline asking if this was enough time for the application to be delivered to the Commission. The Respondent relies on the authority, Thomson v Linx Cargo Care Pty Ltd t/a Linx Port Services.[3] An Applicant may not rely on representative error as a reason for delay where the representative is someone merely assisting in a voluntary capacity.
(b)It is asserted that the Applicant was not rendered incapable of lodging the application on time by his mental health. The Respondent relies on Deputy President Saunders’ decision in Walton v DS Opco Pty Ltd[4] where the Deputy President stated that filing and preparing an application is not difficult or overly time consuming. All that is required is sending an email or making a telephone call.
(c)Mrs Jones’ argument that she had to file the application by post has no merit as Mrs Jones works with computers and payrolls in her role and has the sufficient knowledge and experience with computers to find a way to submit her application online despite the troubles she was having.
(d)No steps were taken after termination. The Applicant did not dispute his dismissal with the Respondent and requested that Mrs Jones file his application. The Applicant only provided documentation prior to the Applicant’s dismissal.
(e)The Respondent would be prejudiced by an extension of time being granted as a delay of 42 days after dismissal is significant.
(f)The Applicant does not have reasonable prospects of success as he is unable to perform the inherent requirements of his role.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[5] or a reasonable explanation.[6] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[7] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[8]
The letter from the Applicant’s psychologist dated 30 January 2023 explained that the Applicant was dealing with anxiety and depression surrounding his life crisis and he had reduced ability to cope with various life stressors. The letter goes on to say that one of these life stressors was his suspension. Yet, no evidence adduced that the Applicant was rendered incapable of filing his application. The Respondent’s argument that making an application is not difficult or an overly time-consuming process and reliance on Walton v DS Opco Pty Ltd[9] is one with merit. As the Applicant was aware of his dismissal, had 21 days to file his application, and was not incapable of making the application, I find his explanation for the delay during the 21-day timeframe was not exceptional.
Regarding Mrs Jones’ reasons for not filing her husband’s application in time, I am persuaded by the Respondent’s reference to Thomson v Linx Cargo Care Pty Ltd t/a Linx Port Services.[10] Mrs Jones was under a lot of pressure to try and hold together the family unit whilst attending to the Applicant’s application. However, the Applicant cannot rely on Mrs Jones as she was only ever assisting in a voluntary capacity.
Regarding the further delay caused by the post, I refer to Deputy President Anderson’s decision in Raymond v THR Developments Pty Ltd.[11] The Deputy President put it aptly that a person should not be disadvantaged for exercising their lawful right to submit their application by post.[12] However, the Deputy President noted that the Applicant in that matter failed to inform himself that an application is lodged when it is received by the Commission. Thus, Anderson DP considered whether the Applicant had turned their mind to issues that may cause a delay to post despite the Applicant having no specialist knowledge.
In this case, Mrs Jones should have turned her mind to the possibility that the application may not have made it in time and made efforts to mitigate this. She made no efforts to call or email the Commission when she did not hear about the application. This was an option available to her as she responded to the email from the Commission asking for reasons why the application was filed late.
In her evidence-in-chief, Mrs Jones states that she had problems filing online. I refer to Johnson v Joy Manufacturing Co Pty Ltd t/as Mining Machinery[13] to provide guidance on this contention. Vice President Lawler provided an extension of four days where the Applicant had made bona fide attempts to lodge their application online within time. When this failed, they posted their application by mail.
I might have been minded allowing for four days for the application by post to be received by the Commission. However, given that it was 42 days post dismissal, an extension for an additional 21 days is beyond what I would consider reasonable in these circumstances.
Therefore, the explanation for the delay and the Applicant’s lack of mitigation weights against an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant became aware of his dismissal on 3 November 2022 by way of a letter from the Respondent. This consideration therefore does not weigh in favour of an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant did not dispute the dismissal. Therefore, I consider this factor to not weigh in favour of an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made a submission that 42 days after dismissal would prejudice the Respondent. However, they presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[14] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[15] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[16]
Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[17]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
The Applicant had been charged and pleaded guilty to a criminal matter as a result of which the Applicant’s wife said he suffered significant mental health issues. The Applicant proffered a letter from his psychologist in support. However, the letter did not say the Applicant was unable to complete an online application nor communicate with the Commission via phone. Further, his wife, who stated that she also had significant pressures of looking after 3 children, one of whom was an adult at home and provide care for the Applicant who she said was on suicide watch also said that she was unable to communicate with the Commission during the 21 days. Whilst I have sympathy for the Applicant and his wife facing many circumstances, some of which are their own making, I do not find there to be exceptional circumstances that would enliven my consideration of allowing a further 21 days for the application.
Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901, [14].
[2] [2019] FWC 25.
[3] [2022] FWC 190.
[4] [2020] FWC 3031.
[5] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[6] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[7] [2018] FWCFB 901.
[8] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[9] [2020] FWC 3031.
[10] [2022] FWC 190.
[11] [2021] FWC 2422, [46], [48]–[51].
[12] Fair Work Rules 2013 (Cth) r 12(2)(b).
[13] [2010] FWA 1394.
[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[15] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[16] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[17] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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